Gender Outlawed: The Supreme Court judgment on third gender and its implications

 

Gee Imaan Semmalar

geeJustice KS Radhakrishnan Panicker and Justice AK Sikri delivered a Supreme Court judgment on April 15,2014. That is all that can be said clearly. Who the judgment includes or excludes in its understanding of transgenders, whether transgenders can identify as male/female or third sex, what is being guaranteed to us as citizenship/civil rights etc is characteristically lost in legalese as is the case in a lot of judgments.

Who filed the petition?

The National Legal Services Authority (NALSA) constituted under the Legal Services Authorities Act, 1987, to provide free Legal Services to the weaker sections of the society and to organize Lok Adalats for amicable settlement of disputes, filed a social interest litigation on providing third gender status to hijras, on reservation and other issues in 2012. In 2013, this matter was tagged together with a petition filed in the Supreme Court by the Poojaya Mata Nasib Kaur Ji Women's Welfare Society, an organization working for kinnars, a transgender community. Laxmi Narayan Tripathi, a transgender rights activist from Mumbai intervened in this case with the help of lawyer Anand Grover (project director of HIV/AIDS unit of Lawyer's Collective in Delhi).

Who is being granted third gender status by the SC judgment? How are they described?

It is not clear who is understood as transgender in this judgment:

"TG may also take in persons who do not identify with their sex assigned at birth, which include Hijras/Eunuchs who, in this writ petition, describe themselves as "third gender" and they do not identify as either male or female. Hijras are not men by virtue of anatomy appearance and psychologically, they are also not women, though they are like women with no female reproduction organ and no menstruation. Since Hijras do not have reproduction capacities as either men or women, they are neither men nor women and claim to be an institutional "third gender". Among Hijras, there are emasculated (castrated, nirvana) men, non-emasculated men (not castrated/akva/akka) and inter-sexed persons (hermaphrodites). TG also includes persons who intend to undergo Sex ReAssignment Surgery (SRS) or have undergone SRS to align their biological sex with their gender identity in order to become male or female. They are generally called transsexual persons. Further, there are persons who like to cross-dress in clothing of opposite gender, i.e transvestites. Resultantly, the term "transgender", in contemporary usage, has become an umbrella term that is used to describe a wide range of identities and experiences, including but not limited to pre-operative, post-operative and non-operative transsexual people, who strongly identify with the gender opposite to their biological sex; male and female" pg 10

There are offensive generalisations such as the one above that claim that all hijras are third gender and do not identify as women because of a "lack" of reproductive organs and menstruation, that they are "emasculated men". It also includes cross dressers who might not have a gender identity different to the one they were assigned. Such references to the trans women as phantasmagoric beings who are neither man nor woman, gender being judged primarily on the presence or absence of reproductive capacity feeds into and reflects all the dominant transphobic stereotypes and beliefs.

"A person's sex is usually assigned at birth, but a relatively small group of persons may be born with bodies which incorporate both or certain aspects of both male and female physiology. At times, genital anatomy problems may arise in certain persons, their innate perception of themselves, is not in conformity with the sex assigned to them at birth and may include pre and post-operative transsexual persons and also persons who do not choose to undergo or do not have access to operation and also include persons who cannot undergo successful operation" pg 15

People with intersex variations are being referred to as having "genital anatomy problems" and are also conflated with transgender people.

"Eunuch: Eunuch refers to an emasculated male and intersexed to a person whose genitals are ambiguously male-like at birth, but this is discovered the child previously assigned to the male sex, would be recategorized as intesexexd – as a Hijra." Ph 48

And then some nonsensical definitions like the one above that does not respect the fact that the word "eunuch" has been widely repudiated by the trans and intersex community as being offensive and related to a history of colonial, medicalized, oppression.

"Discussion on gender identity including self-identification of gender of male/female or as transgender mostly focuses on those persons who are assigned male sex at birth, whether one talks of Hijra transgender, woman or male or male to female transgender persons, while concern voiced by those who are identified as female to male trans-sexual persons often not properly addressed. Female to male unlike Hijra/ transgender persons are not quite visible in public unlike Hijra/transgender persons. Many of them, however, do experience violence and discrimination because of their sexual orientation or gender identity" Pg 53

There is just one reference on how the issues faced by ftms or transmen are not addressed - which is ironically what the judgment is also guilty of.

"Such a person, carrying dual entity simultaneously, would encounter mental and psychological difficulties which would hinder his/her normal mental and even physical growth" Pg 91

"TGs face many disadvantages due to various reasons, particularly for gender abnormality which in certain level needs to physical and mental disability " pg 97

A pathologisation of trans people runs throughout the judgment with emphasis on the duality of mind and body and how psychological tests should be preferred over physical tests or sex reassignment surgery as a criteria.

"some persons, though relatively very small in number, may born with bodies which incorporate both or certain aspects of both male or female physiology. It may also happen that though a person is born as a male, because of some genital anatomy problems his innate perception may be that of a female and all his actions would be female oriented. The position may be exactly the opposite wherein a person born as female may behave like a male person".pg 77

Another passing reference to ftm trans people and how we have "genital anatomy problems".

"At the outset, it may be clarified that the term 'transgender' is used in a wider sense, in the present age. Even Gay, Lesbian, bisexual are included by the descriptor 'transgender'" pg 93

In a display of large hearted generosity, justice Sikri extends the definition to include gay, lesbians and bisexuals but hastens to add that the judgment doesn't look at it in a broad sense.

"Obviously transvestites, the hijra beg from merchants who quickly, under threat of obscene abuse, respond to the silent demands of such detested individuals. On occasion, especially festival days, they press their claims with boisterous and ribald singing and dancing"( A Right to Exist: Eunuchs and the State in Nineteenth-Century India Laurence W. Preston Modern Asian Studies, Vol.21,No.2 (1987), pp.371-387) discuss about the question of conferring distinct identity, we are restrictive in our meaning which has to be given to TG community i.e. hijra etc., as explained above". Pg 95

There are numerous such examples running through the 115 page judgment. What emerges from all the confusion is that we can only say clearly that the judgment applies to hijras and people with intersex variations.

Do hijras have the option to choose women or third gender status on the basis of what they prefer?

It is not clear in the judgment whether this choice is left to trans sisters. To avail benefits like OBC reservation in jobs and education, would it be compulsory for trans women to get third gender identities? The process is not clear and neither is whether they have a choice.

"In other words, gender identity is integral to the dignity of an individual and is at the core of "personal autonomy" and "self-determination". Hijras/Eunuchs, therefore, have to be considered as Third Gender, over and above binary genders under our Constitution and the laws." pg 72

In the first line, they affirm the right to self determination and personal autonomy and in the next, they decide for us that hijras have to be considered as third gender taking away the autonomy just granted.

"As is clear, these petitions essentially raise an issue of "Gender Identity", which is the core issue. It has two facets, viz.: "(a) Whether a person who is born as a male with predominantly female orientation (or vice-versa), has a right to get himself to be recognised as a female as per his choice moreso, when such a person after having undergone operational procedure, changes his/her sex as well; (b) Whether transgender (TG), who are neither males nor females, have a right to be identified and categorized as a "third gender"?"

"We would hasten to add that it is the second issue with which we are primarily concerned in these petitions though in the process of discussion, first issue which is somewhat inter-related, has also popped up."
Pg 75

"In order to translate the aforesaid rights of TGs into reality, it becomes imperative to first assign them their proper 'sex'. As TGs in India, are neither male nor female, treating them as belonging to either of the aforesaid categories, is the denial of these constitutional rights" pg 102

It is clear that the court wants to make us into a manageable category, reveal the "truth" of our sex. In a strange twist of logic, the judgement says treating trans women as female would be a denial of constitutional rights!

In the specific directions listed at the end of judgement there is a contradictory view to the ones mentioned above.

"Hijras, Eunuchs, apart from binary gender, be treated as "third gender" for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by the Parliament and the State Legislature".

"Transgender persons' right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender"

Is sex reassignment surgery [SRS] necessary for gender identity to be recognised by the state?

This is also not clear:

"Gender characteristics and perception ,which has become possible because of the advancement in medical science, and when that is permitted by in medical ethics with no legal embargo, we do not find any impediment, legal or otherwise, in giving due recognition to the gender identity based on the reassign sex after undergoing SRS" pg 92

"For these reasons, we are of the opinion that even in the absence of any statutory regime in this country, a person has a constitutional right to get the recognition as male or female after SRS, which was not only his/her gender characteristic but has become his/her physical form as well" pg 93

In the directions that come at the end of the judgment there is this progressive, contradictory view-

"Centre and State Governments should seriously address the problems being faced by Hijras/Transgenders such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc. and any insistence for SRS for declaring one's gender is immoral and illegal"

Discourses that inform the judgement and are reinforced by it.

The use of the word "eunuch" itself is offensive and throughout the judgment, Hijra and eunuch is used interchangeably. What is the history of the use of the word "eunuch"? The word is finds mention in The Hyderabad Eunuchs Act, which is based on the Criminal Tribes Act Amendment of 1871. The British, in 1871, included 'eunuchs' among other tribes, castes and social groups considered criminal at birth. In 2005, the central government introduced an E category in passport application forms where E stood for "eunuch". There were protests from the trans community at the use of the word and it was later revoked. Asha Bharati president of Tamil Nadu Aravanigal Association felt it ridiculous that they were addressed with this term." We are no longer the castrated men who guarded royal harems of Arab kings" she said in an interview. So what made the judges use "eunuch" as an identity term? The answer lies in the appendix of the NALSA petition. Some articles like Siddharth Narrain's "Being a Eunuch", Sharda Girilesh Sharma's "Whether Eunuch are recognised as legal entity in India" etc which are attached to the petition use the word "Eunuch" to describe trans women. "Mental health concerns of transgender population living in Chennai, South India" by Thilakaravi is also part of the appendix. The judgment as we have seen oscillates between pathologising us as psychologically affected people and a sympathetic tone that tries but fails to be respectful. International human rights discourse also finds its way into the judgment like the definition of Hijra through the UNDP report of 2010 titled , 'Hijras/ transgender women in India: HIV , human rights and social exclusion'. Transphobia in the articles written by non trans people like Uma Shankari titled, 'The life of hijras, transgender or the third gender in India', 2011 which has statements like hijras are "uninvited guests" at weddings and "they can make lewd remarks or lift their dress immodestly and force the host to part with money" and "However vexed one may be with them, nobody would lift their hands to hit them. If they did, all hell would break lose, they will then have to face an army of hijras, who always operate in groups" also find their way into the judgment. What is lewd or obscene to you is the display of feminist sexual power by hijras as a radical challenge to the sanitisation of public space by Brahmanical patriarchy. We see the exposure of genitals by our sisters as a radical act and are proud of them for bringing the crudeness of our sex, the castration of phallic power to the public domain.

There is also a saffronisation of the Hijra through myths that rely heavily on the Ramayana and Mahabharata (with nothing more than a cursory reference to the Mughal period) in the judgment brought in by arguments made by Anand Grover and also informed by articles written by caste Hindu commentators that form the appendix of the petition. In a bid to prove rather unnecessarily that transgenders are not western imports, they end up presenting a golden Hindu period where there was no discrimination and a villainous colonial presence from which the oppression started. This completely ignores the Muslim cultural context within which several hijra gharanas have flourished beyond the restrictions of Hinduism, creating a syncretic culture that respects Islam within the transgender community. In a bid to claim a Hindu centric diversity in trans identities, Jogtas and shiv shaktis are included in the definition of transgender. Jogappas usually come from oppressed caste backgrounds in North Karnataka, jogtas from Andhra Pradesh and shiv shaktis from Maharashtra and Andhra Pradesh and they are dedicated at a young age to Yellama, cross dress and are forbidden to marry. It is debatable what the extent of choice is when you are dedicated to a goddess at a young age,due to a religious belief and whether these can even be taken as trans identities. I have never seen these groups ever lobby with government or be part of NGOs. So for the sake of proving that transgender is not a western import, there is a co option of such alternate expressions and cultures which might not be identities in the modern sense of the term.

What are the implications of the judgment for trans communties?

A lot of trans women are apprehensive about whether their identity cards stating that they are " female" will be revoked and they will be given " third gender" status. In a meeting held in Chennai, on the day the judgment came out, some transwomen expressed anxiety about "fake hijras" availing benefits since self declaration is being prematurely publicised as the process to get recognition, creating tensions and reinforcing internal hierarchies of " real" and "fake" amongst community members. We are unable to say what the implications are for trans men since no news reports mention us and the judgment also makes a token reference and nothing more, inspite of a letter signed by 74 trans men being sent along with detailed recommendations to the Expert Committee on transgender issues set up by the Ministry of Social Justice and Empowerment. This is inspite of two gender queers from the community being special invitees on the expert committee.

What does a blanket OBC reservation mean to a community that has a large number of dalit trans people? An unwarranted promotion? What does an OBC status mean to internal hierarchies? Since reservation would be a certain percentage granted and not unlimited, would relatively privileged savarna hijras working for NGOs get all the benefits while street based, Dalit hijras fall behind on the benefits? A concern raised by Living Smile Vidya and many other dalit trans sisters much before the judgment. Living Smile Vidya says, "I definitely do not want to be OBC. And you will understand why as a dalit, I do not want to come under the OBC category of all things! Puttings transgenders under a oppressed caste category erases the caste priviliges that savarna transgenders have. It is better for us to have caste and gender based reservation so that dalit women and dalit transgenders get representation. Otherwise reservation will only benefit savarna transgenders and dalit men".

Would oppressive psychological tests displace equally oppressive sex reassignment surgery requirements in order to have third gender status conferred on us?

It is not true that hijras have had no rights to contest elections or vote. Shabnam Mausi, a trans sister, was elected member of Madhya Pradesh state legislative assembly from 1998 to 2003. She contested as a woman from Shahdol. In 2000, she became first Hijra Member of Parliament. The issue that is mentioned in the NALSA petition also, is that of women's reservation and whether this can be extended to Hijra candidates. This concern came to the public domain after Kamala Jaan was made to step down from her post as mayor of Katni in 2000 on an order of the Madhya Pradesh High Court that stated that she belonged to the category of "male" and hence is not eligible for a seat reserved for women. The conferring of third gender status does not address this issue. Although the judgment acknowledges the high prevalence of rapes and other forms of violence against trans women, it does not address the issue of how hijras can register cases in instances of gender specific laws like sexual assault and rape laws. Would these laws be expanded to include "third gender" in the category of victims? Or would new laws have to be made specific to third genders? The judgment says that to enjoy equal constitutional rights, we have been conferred third gender status, but how will inheritance (not that most trans women have much feudal wealth to inherit), marriage, adoption laws be applicable to a third gender that is not mentioned anywhere in the existing laws of the country?

In the Court's reading of Article 19 (1) a, the right to freedom of speech and expression is to include the right to expression of one's self identified gender. No person can be told how to dress subject to restrictions in Article 19(2) (which include 'public order, decency and morality). This is being celebrated as a revolutionary move by gay lawyers on blogs. Are they not aware that it is precisely that loophole of public order, decency and morality that is used to target our trans sisters? Section 268 of the IPC which deals with Public nuisance, sec 320 that deals with grievous hurt (used falsely against hijras for voluntarily undergoing sex change), Immoral trafficking prevention act ( ITPA) are used most commonly against hijras. Not sec 377 as is the claim made by gay lawyers. The judgment itself refers to a pre independence case in 1884 Queen Empress vs Khairati! The definition of Section 377 on Unnatural offences says- "Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine". Since the Supreme Court has conferred third gender status to transwomen and section 377 doesn't include third gender(only man, woman or animal), it doesn't affect this community, so gay lawyers and lesbian activists can stop being our saviours now.

Precedents of government policy on transgenders and implementation

Now let us look at precedents of how policy relating to trans people have been implemented since the judgment itself is vague and everything depends on how it is applied. In 2011 census, the "other" category was introduced in the census. It was only years later that I read the instruction manual for house listing and housing census. Under 'Total number of persons normally residing in this household' on page 41 it says,"Eunuchs and hermaphrodites will be counted with males and entered under column 11". On page 42 under ' head of household' it says,"4.64 if the head of the household is a male write 1 and if female write 2 in this column. For eunuchs and hermaphrodites you have to write 1 in this column." So for all practical purposes , the "other" column introduced was redundant because hijras were being counted as " male". Why this nonsensical drama then?

The Karnataka government, through the Department of Women and Child Development, in 2010, issued a government order securing benefits for the transgender community which is now included in the 2A category of the Backward Class Commission. It is 2014 now and we are still waiting for the Karnataka government to implement this! We hear rumours that some NGOs have been outsourced handing out benefits and are doing it for staff members. In April 2011, the Karnataka government under the order of K R Chamayya, former law secretary and former vice-chairman of the Karnataka Administrative Tribunal legislated an amendment to the state Police Act, introducing Section 36A. The section is aimed at controlling the 'objectionable activities' of "eunuchs". Under it, the police must record the names of 'eunuchs' in their jurisdiction suspected of kidnapping boys, committing 'unnatural offences' or any such crimes in a register. This is part of the Criminal Tribes Act, one of the few sections that is still in force as we celebrate the recognition of the Supreme Court granted to the same community.

Similarly, on 25th march, 2014 the Ministry of Social Justice and Empowerment brings out a notification. It quotes an organisation called "Salvation of Oppressed Eunuchs" which has alleged that the guru chela relationship amongst hijras is bonded labour and must be abolished. The notification seeks complaints from aggrieved chelas[daughters] against their gurus[mothers] and provides an addressable and phone number for the director Mr Anand Katoch, Shastri Bhavan, New Delhi. These examples show that the State gives recognition with one hand and criminalises with the other. Do you still expect us to rejoice and celebrate? You say we speak at inopportune moments and must strategically be silent? As Ravichandran Chakilliyan of Dalit Camera has pointed out at several forums, when Arunthathiyars talk about atrocities by Parayars on them, they are asked to not speak and present a united front to others. This is the same with any oppressed category when we speak out about internal hierarchies. If your strategy is silent complicity, we reject you as allies in our struggle. But speak we must and speak we will.

Reactions from LGB "family"

Cisgendered gay lawyers and lesbian activists lost no time in declaring it to be a path breaking judgment. Why are lesbian and gay activists who did not intervene in or discuss the NALSA petition prior to this, suddenly celebrating this confused and confusing judgment? Is it because they are craving a legal victory so badly after the sec 377 flop show that they will just jump into any bandwagon and appropriate it? Or is it something deeper, a more opportunistic agenda? Anjali Gopalan of Naz Foundation can't control her happiness in a New York Times interview, lesbian activists in Bombay are talking about "scope", Colin Gonsalves, a cis heterosexual lawyer says the judgment is "a breath of fresh air". What is stinking then that some of us trans people can smell in the air? Ah, the fact that the judgment in all its confusion talks about sexual orientation coupled with the very convenient fact that the curative petition filed by the sec 377 campaign is in the Supreme Court for its consideration this very week.

The gradation of power in the urban, televised lgbt "family" shows a typical heteronormative, nuclear family pattern with Cisgendered gay lawyers with class/caste power as heads of the "family", second in line are lesbians with caste and class power, then the transgender stepchildren who are so marginalised by the " family" that the NALSA fights legal battles on our behalf. Clearly no gay or lesbian saviours in the courtroom. But plenty on television interviews and on blogs. Cisgendered Gay and lesbian activists have always used trans people as subjects for research, films, documentation, setting up NGOs, making pride marches colourful with, art projects, weaving narratives of victimhood etc so it is not surprising that they would ride on our backs for their campaigns. But while riding on our backs, they will also celebrate and "stand up for" (like a rally and programme organised by Delhi queer pride group says) and patronise us. If they were allies, before declaring this as a landmark judgment, before thinking about their own campaign and planting posts on blogs about how this judgment is "reminiscent" of the Delhi high court ruling on sec 377, gay lawyers would have made summaries of the SC judgment in accessible language and had meetings with trans communities and discussed what this means to us. "Justice Sikri explains the idea of justice that animates the Indian Constitution as being influenced by the Kantian categorical imperative, the Rawlsian notion of Justice as Fairness and Amartya Sen's idea of distributive justice", writes gay researcher/lawyer Siddarth Narrain in his piece, '(En) Gendering a Rights Revolution' on Kafila published on 16th April. He however fails to point out how in all the confusion of who is "being a eunuch" and who is writing about a "eunuch" he is misgendered by the Supreme Court as a " eunuch" from Namakkal in the judgment! The celebration of the Supreme Court judgment by gay and lesbian activists without understanding the judgment and its implication for trans communities is a shameless display of caste, class and cisgendered power. Compared to this mindless celebration, I appreciate the candid selfishness expressed by Shobhana Kumar a lesbian entrepreneur from Bombay who set up a publishing house called Queer Ink who, on being asked how the judgment would help lesbians and gays said, "I'm not sure it would help, so we aren't celebrating yet." and Ashok Row Kavi who admits to being bitter in a Times Of India interview.

Why I write and Why you celebrate

Senior transwomen who have been contacted for interviews by news channels welcomed the 115 page judgment without knowing what was actually written in it. Lawyer's Collective put out a misleadingly coherent summary of what the judgement said. If anyone were to look at the media coverage, it is clear what the power imbalance of the representation is - in all coverage about the NALSA petition judgment, sec 377 campaign is mentioned but not vice versa though both were being tried in the Supreme Court at the same time. All media coverage quotes the sec 377 campaign as the Indian LGBT movement and the SC judgment on third gender as just a SC decision. As a savarna trans man who is privileged enough to be english educated, I feel compelled to write about this and intervene in the celebratory discourse being manufactured by non trans savarna gay and lesbian activists. Because interviews given by transwomen don't have primetime space on TV and find it difficult to challenge, your dominant discourse laden with class, caste and cisgender privilege. Like Pavithra for Lok Sabha in which she says, "When I was 14, I chose to become a woman from a man. I am still fighting to be accepted as a woman. I want to build a respectable livelihood as one. I don't want to be an "other" gender person."Lack of work turned her towards begging. She is listed as Female on her Voter's ID and doesn't want to change it to 'Others'. "It takes away my identity" she is quoted as saying.

gay meme

There is cause for celebration amongst gay and lesbian activists who can quote this judgment for their campaigns and research papers, for who this is an interesting legal development that can be discussed over beer. There is cause for celebration for NGOs who will now scramble to get state funds to implement these policies, their new target intervention programme will be registering as many trans women as they can under the third gender status. There is cause for celebration for cis, savarna feminists who can hang on to the purity of their category and not have polluting Hijra infiltration into women's reservation, women's spaces etc. When dalits or trans people claim identity politics, you always accuse us of being essentialist. I wonder why you are not saying the same about the judgment and how it sees hijras as a homogenous community with a consensus on third gender category being a desirable change. Any interaction with legal structures is tricky and can go both ways, we did not ask to be dissected and made more legible to the state. I would like to remind everyone that this is NOT the result of a campaign undertaken by the Hijra community, unlike the campaign against sec 377 that was arrogantly propelled and carried forward by Brahmin, gay lawyers with an excessive faith in the legal system to safeguard their rights . It was a third party intervention by NALSA. So the onus of accepting this judgment and all it implies being thrust on us violently is unfair to say the least. I can already hear gay lawyers in their expert, clipped English accents laugh off these critiques as one made by someone not familiar with the legal system. We know how dangerous the system is, how casteist, transphobic and patriarchal. That is precisely why we try and stay out of it. If you think we are expecting too much of the Supreme Court let me remind you of your outrage and numerous articles you wrote in dissent against the Supreme Court decision on sec 377. And the Supreme Court in that instance had not made any blatantly homophobic remarks. I wonder how much outrage there would be if the highest court of the country used "gaandu" and homosexual interchangeably as they have used "eunuch" and Hijra in this judgment. You will say the learned judges do not know enough about trans people to not use offensive terms. We say, ignorance or non engagement with trans people who you know exist but don't care enough to respect or understand is also transphobia. We refuse to be convenient victims anymore, we will speak out about inconvenient truths now. Excluding in the guise of inclusivity, silencing while speaking for, oppressing while saving, victimising while empowering, celebrating our defeats as your victories, these are old tactics of the oppressor and we won't be fooled by it.

~~~

 

Gee Imaan Semmalar is a savarna trans man, brother and son to many hijra women.

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